United States v. Michael Woods , 710 F.3d 195 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4817
MICHAEL RAY WOODS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(5:10-cr-00037-F-1)
Argued: January 31, 2013
Decided: March 18, 2013
Before TRAXLER, Chief Judge, and KEENAN and
THACKER, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Chief Judge Traxler and Judge Thacker joined.
COUNSEL
ARGUED: Douglas Everette Kingsbery, THARRINGTON
SMITH LLP, Raleigh, North Carolina, for Appellant. Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
2 UNITED STATES v. WOODS
lee. ON BRIEF: Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
Defendant Michael R. Woods (Woods) was convicted of
numerous charges arising from a tax fraud scheme operated
through his business of preparing income tax returns for pri-
vate individuals. In this appeal, Woods argues that his trial
was prejudiced by three errors, namely, that the district court
improperly restricted Woods’ constitutional right to testify in
his own defense; that the prosecutor committed reversible
error by making an improper statement during closing argu-
ment; and that the district court’s instructions to the jury were
improper. Although we hold that two errors occurred during
the trial, we conclude that neither constituted reversible error
in the absence of any prejudice affecting the outcome of the
trial. Accordingly, we affirm Woods’ convictions and sen-
tence.
I.
Woods was charged in a thirty-four count superseding
indictment with willfully assisting the preparation and presen-
tation of false and fraudulent tax returns to the Internal Reve-
nue Service (IRS), in violation of 26 U.S.C. § 7206(2)
(Counts 1-12); wire fraud, in violation of 18 U.S.C. § 1343
(Counts 13-22); identity theft, in violation of 18 U.S.C.
§ 1028(a)(7) (Counts 23-32); and aggravated identity theft, in
violation of 18 U.S.C. § 1028A (Counts 33-34). During the
course of the fraudulent scheme, Woods, a veteran of the
United States Army, was employed on a full-time basis as a
UNITED STATES v. WOODS 3
data warehouse manager with the United States Department
of Veterans Affairs (VA) in Fayetteville, North Carolina. To
supplement the income he received from his work at the VA,
Woods operated a tax preparation service, M&R Computer
Consulting and Tax (M&R), out of his home. Woods person-
ally prepared clients’ income tax returns for a fee, which was
deducted directly from the clients’ tax refunds.
According to the government’s theory of the case, Woods
added fraudulent information to clients’ tax returns in order to
qualify the clients for substantial tax refunds. For example,
the evidence showed that Woods listed on the returns various
educational, business, and travel expenses never incurred by
his clients. Also, Woods falsely listed as dependents on sev-
eral clients’ tax returns the names of individuals who were
patients of the VA, including their birth dates and social
security numbers. The government’s witnesses testified that
Woods charged clients a $500 premium for each false depen-
dent included on a tax return. The government maintained that
Woods stole the names of the false dependents from the VA
computer system, to which he had access through his employ-
ment as data warehouse manager.
Woods represented himself at trial, with the assistance of
stand-by counsel, and testified in his own defense. Woods
denied that he had stolen any identities from the VA and
stated that the incorrect information he entered on his clients’
tax returns was provided by the clients themselves.
After a four-day trial, the jury returned a verdict of guilty
on all counts.1 The district court sentenced Woods to a total
of 132 months’ imprisonment and a three-year period of
supervised release, and ordered Woods to pay restitution to
the IRS in the amount of $464,599. Woods filed a timely
notice of appeal.
1
The district court subsequently vacated one of the identity theft and
one of the aggravated identity theft convictions, leaving 32 counts of con-
viction remaining.
4 UNITED STATES v. WOODS
Woods argues on appeal: (1) that the district court improp-
erly restricted Woods’ constitutional right to testify in his own
defense by sustaining the government’s repeated objections to
portions of his testimony; (2) that his substantial rights were
affected by the prosecutor’s improper statement during clos-
ing argument that Woods had lied under oath when testifying;
(3) that the district court erred in refusing to instruct the jury
regarding evidence of Woods’ good character; and (4) that the
district court gave an erroneous instruction on the elements of
the identity theft offenses. We address each argument in turn.
II.
Woods first argues that he effectively was denied his con-
stitutional right to testify in his own defense because, during
his testimony, the district court repeatedly sustained the gov-
ernment’s objections and otherwise limited his presentation of
evidence. A defendant’s right to testify in his own defense is
rooted in the Constitution’s Due Process Clause, Compulsory
Process Clause, and Fifth Amendment right against self-
incrimination. Rock v. Arkansas, 483 U.S. 44, 49-53 (1987).
Nevertheless, this right is "not unlimited," United States v.
Midgett, 342 F.3d 321, 325 (4th Cir. 2003) (citation omitted),
and a defendant choosing to appear pro se still must comply
with substantive and procedural courtroom rules, Faretta v.
California, 422 U.S. 806, 834 n.46 (1975). See also Cham-
bers v. Mississippi, 410 U.S. 284, 302 (1973) (explaining that,
in presenting witnesses in his defense, a defendant "must
comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascer-
tainment of guilt and innocence").
A district court thus may impose "reasonable restrictions"
on a defendant’s ability to present relevant evidence. United
States v. Scheffer, 523 U.S. 303, 308 (1998). However, "re-
strictions of a defendant’s right to testify may not be arbitrary
or disproportionate to the purposes they are designed to serve."2
Rock, 483 U.S. at 55-56.
2
We reject the government’s contention that, because the defendant did
not object to the court’s restrictions on his testimony at trial, we are lim-
UNITED STATES v. WOODS 5
District courts generally enjoy broad discretion in ruling on
the admissibility of evidence, see United States v. Medford,
661 F.3d 746, 751 (4th Cir. 2011), as well as in the realm of
trial management, which is "quintessentially the province of
the district courts," United States v. Smith, 452 F.3d 323, 332
(4th Cir. 2006). See also Saudi v. Northrop Grumman Corp.,
427 F.3d 271, 278 (4th Cir. 2005). In the exercise of these
responsibilities, district courts are charged with the duty of
maintaining "reasonable control over the mode and order of
examining witnesses and presenting evidence" in order to pro-
mote the truth-seeking function of the trial, to avoid wasting
time, and to protect witnesses from harassment. Fed. R. Evid.
611(a); see also United States v. Gravely, 840 F.2d 1156,
1163 (4th Cir. 1988) (explaining that district courts have
broad discretion to control the method of questioning wit-
nesses and the presentation of evidence to ensure that wit-
nesses are treated fairly, and that "the search for truth is not
impaired by presentation of extraneous, prejudicial or confus-
ing material").
Employing these principles, we consider whether the dis-
trict court acted in an arbitrary fashion, or restricted Woods’
testimony to a degree not warranted by the demands of evi-
dentiary and trial management. During the course of Woods’
direct testimony, the government lodged 15 objections, some
of which were overruled by the court. The majority of the
government’s objections rested on the ground that Woods was
arguing to the jury rather than testifying about factual matters,
was summarizing other witnesses’ testimony, or was testify-
ited to plain error review. To preserve a claim of error under Federal Rule
of Criminal Procedure 51(b), a party must only "inform[ ] the court . . .
of the action the party wishes the court to take." In this case, Woods
informed the court of his desired rulings by attempting to testify regarding
specific issues, thereby prompting the government’s objections. By his
attempted testimony, therefore, Woods preserved his claim of error for our
review.
6 UNITED STATES v. WOODS
ing concerning facts about which he had no personal knowl-
edge.
In response to these repeated objections, the district court
advised Woods to "just relate the facts," and to "confine [his
testimony] to the facts . . . about what happened." The court
further explained to Woods that "we don’t want to argue
about . . . whether [a previous witness] said something or
didn’t say something." The court additionally informed
Woods that he would have an opportunity to make arguments
to the jury at a later time. At various other points during
Woods’ testimony, the court responded to the prosecutor that
Woods should be allowed some leeway in presenting his testi-
mony.
Woods argues that, as a result of these rulings, the district
court prevented him from developing certain "themes" of his
defense during his testimony. These themes included: (1) that
Woods entered on the tax returns only information provided
by his clients concerning their dependents; (2) that Woods’
employees prepared certain fraudulent tax returns without his
knowledge; (3) that Woods holds the Army and veterans in
high regard and, therefore, would not have stolen the identi-
ties of disabled veterans; (4) that Woods "values his personal
integrity and respects the law," and has "cultivated a reputa-
tion for honesty and abiding the law"; and (5) that certain
$500 checks Woods received from clients did not represent
payment for false dependent data, but were given in repay-
ment of loans Woods had made in anticipation of the clients’
tax refunds.
Despite the government’s objections, Woods was permitted
to testify regarding a range of issues assisting his defense,
including several of the subjects he claims on appeal he was
not allowed to develop. For example, in his testimony, Woods
flatly denied that he had stolen personal data of VA patients
and had used that information on his clients’ tax returns. He
UNITED STATES v. WOODS 7
further stated that the $500 checks he received from clients
were for loan repayments.
Additionally, Woods explained that his assistant, who was
one of the government’s witnesses, "had access to everything
in [his] tax business." Woods related that his assistant pre-
pared certain tax returns without Woods’ supervision, thereby
implying that she was involved in the scheme. Woods further
testified that he had received from his clients all the informa-
tion he entered on the tax returns, that the clients verified that
they were the source of this information by signing the IRS
forms, and that he always personally reviewed the tax returns
with his clients. Finally, Woods attested to his own good char-
acter and integrity.
After reviewing the entire record, we conclude that the dis-
trict court did not abuse its discretion in its evidentiary rul-
ings, did not act arbitrarily, and did not impose limitations on
Woods’ testimony that were disproportionate to legitimate
concerns of evidentiary reliability or trial management. As an
appellate body, we appreciate that the dynamic nature of jury
trials requires special vigilance on the part of district courts to
manage effectively the participation of parties, witnesses,
jurors, and spectators. We also recognize the difficult role of
the district court when a defendant chooses to represent him-
self, especially when such a defendant elects to testify in his
own defense.
In light of these challenges, we decline to find reversible
error in the absence of plainly arbitrary conduct by the district
court. Here, there is no such conduct, and the present record
affirmatively demonstrates that the district court expressly
granted Woods considerable leeway in presenting evidence
and allowed him to offer substantial exculpatory testimony.
Accordingly, we hold that the district court did not deprive
Woods of his constitutional right to testify in his own defense.
8 UNITED STATES v. WOODS
III.
Woods argues, nevertheless, that he is entitled to a new trial
because he was prejudiced by an improper statement that the
prosecutor made during closing argument. However, Woods
did not object to the prosecutor’s statement at trial and, there-
fore, we are confined to plain error review. See United States
v. Olano, 507 U.S. 725, 731 (1993). Under this standard,
Woods must show not only that the district court committed
an "error" that was "plain," but also that the error affected
Woods’ substantial rights thereby impacting the outcome of
his trial. United States v. Gonzales-Flores, 701 F.3d 112, 115
(4th Cir. 2012) (citing Olano, 507 U.S. at 732). Further, even
when a defendant establishes the above elements of plain
error, "we may nevertheless decline to notice the error unless
it seriously affects the fairness, integrity or public reputation
of judicial proceedings." Id. (quotation marks and alteration
omitted).
As discussed above, the government maintained that
Woods profited from his fraudulent scheme by charging cli-
ents a $500 premium for the inclusion of false dependent
information on those clients’ tax returns. Woods, however,
testified that the $500 sums represented repayments of loans
he had made to clients before they received their tax refunds.
The part of the government’s closing argument at issue here
occurred when the prosecutor stated:
So, Mr. Woods was right in the middle of getting
these $500 payments for the fake dependents and he
lied about it under oath when he testified this morn-
ing (emphasis added).
According to Woods, this statement was improper and con-
stituted reversible error. In response, the government argues
that the statement was neither improper nor prejudicial.
UNITED STATES v. WOODS 9
First, we disagree with the government’s contention that
this statement was proper. We long have rebuked government
counsel for making inflammatory statements of this nature.
Twenty years ago, in United States v. Moore, 11 F.3d 475(4th Cir. 1993), we strongly criticized a prosecutor’s state-
ment during closing argument that the crime was "com-
pounded when the defendant . . . comes into a federal court,
takes the oath on the Bible, and lies." 11 F.3d at 480. We
explained unequivocally that "it is highly improper for the
government to refer to a defense witness as a liar," and further
noted that we had "continually admonished the government
not to engage in such conduct." Id. at 481 (emphasis added).
Applying plain error review in Moore, we held that the prose-
cutor’s statement was error that was plain, and we "strongly
admonished [the government] to ‘clean up its act,’" issuing
the warning "hopefully for the last time."3 Id. at 482 n.9; see
also United States v. Weatherless, 734 F.2d 179, 181 (4th Cir.
1984) (noting that government counsel’s multiple statements
that the defendant was a liar and a "loser" fell "well beneath
the standard which a prosecutor should observe"); cf. United
States v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997) ("It is
improper for a prosecutor to directly express his opinion as to
the veracity of a witness.") (quoting Moore, 11 F.3d at 481).
Our reasoning in Moore applies with equal force in the
present case, because "any statement of personal belief jeop-
ardizes the integrity of the trial process." Loayza, 107 F.3d at
262 (quoting United States v. Harrison, 716 F.2d 1050, 1052
(4th Cir. 1983)). When a prosecutor comments on the veracity
of a witness, the prosecutor’s statement presents two discrete
risks: (1) of improperly suggesting to the jury that the prose-
3
Despite the error in Moore, we nevertheless affirmed the district
court’s judgment because the error, although plain, had not affected the
defendant’s substantial rights. 11 F.3d at 482. In a more recent case in
which the government called the defendant a liar, we found that plain error
had not been established, and we declined to vacate the defendant’s con-
viction. United States v. Powell, 680 F.3d 350 (4th Cir. 2012).
10 UNITED STATES v. WOODS
cutor’s personal opinion has evidentiary weight; and (2) of
improperly inviting the jury to infer that the prosecutor "had
access to extra-judicial information, not available to the jury."
United States v. Moore, 710 F.2d 157, 159 (4th Cir. 1983).
The gravity of these risks is amplified in the case of a crim-
inal defendant exercising his constitutional right to testify in
his own defense. Here, by stating that Woods lied under oath,
the prosecutor suggested to the jury that Woods abused this
constitutional right and attempted to manipulate the outcome
of the trial to avoid being held responsible for his true actions.
Based on these grave concerns, we reiterate our holding in
Moore that error that is plain results when a prosecutor states
that a defendant has lied under oath during trial, and we con-
clude that such an error occurred here.4
In addition to establishing error, and that the error was
plain, Woods also must show that his "substantial rights" were
affected by the error in order to obtain a new trial. Olano, 507
U.S. at 735. When the evidence of guilt "is overwhelming and
a perfect trial would reach the same result, a substantial right
is not affected" by a particular error. United States v. Godwin,
272 F.3d 659, 680 (4th Cir. 2001).
In conducting this prejudice inquiry, we apply a well-
established test. We consider:
(1) the degree to which the prosecutor’s remarks
have a tendency to mislead the jury and to prejudice
the accused; (2) whether the remarks were isolated
or extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; and (4) whether the comments were
4
We are not persuaded by the government’s attempt on appeal to distin-
guish between a situation in which the prosecutor referred to the defendant
as a "liar," and, as in this case, a situation in which the prosecutor stated
that the defendant "lied."
UNITED STATES v. WOODS 11
deliberately placed before the jury to divert attention
to extraneous matters.
Harrison, 716 F.2d at 1052; see also Moore, 11 F.3d at 482.
At the outset, we recognize that the prosecutor’s statement
risked prejudicing the outcome of the trial due to the impor-
tance of Woods’ credibility regarding the issues in the case.
The government’s proof relied heavily on the testimony of
Woods’ former clients and employees who either were com-
plicit in, or at least benefitted from, the fraudulent scheme.
Indeed, Woods’ defense theory, that he merely transcribed the
information provided by his clients, made Woods’ credibility
an important issue particularly because Woods did not offer
any other witnesses in his defense.5
Despite the government’s concession that the prosecutor’s
remark was deliberate, we conclude that the three other ele-
ments of our prejudice inquiry demonstrate that the outcome
of the trial was not affected by the improper statement. The
comment was relatively isolated in nature.6 And, most impor-
tantly, the statement did not prejudice Woods given the
"strength of competent proof introduced" against him that
both overwhelmingly supported a finding of guilt and under-
mined his credibility. See Harrison, 716 F.2d at 1051.
Woods’ credibility was damaged significantly by documen-
tary evidence presented by the government that was in out-
right conflict with his testimony. That documentary evidence
included copies of numerous checks and money orders written
5
The record reflects that the defendant admitted three exhibits into evi-
dence, though the exhibits themselves are not included in the record on
appeal.
6
Later during the government’s closing argument, the prosecutor stated,
"[Woods] has no regret for what he did. Instead, he took the stand this
morning and gave blatantly false testimony in an attempt to avoid respon-
sibility." Woods does not challenge this statement on appeal.
12 UNITED STATES v. WOODS
by clients in the amount of $500 and $1000, which under-
mined Woods’ contention that he charged only between $150
and $247 to prepare each return. The evidence of those checks
and money orders also undermined Woods’ flat denials that
he had received any payments of $500 for tax services.7
Some of these checks included the word "taxes" on their
"memo" line. When confronted with the evidence of the pay-
ments on cross-examination, Woods testified that he was
unable to recall specific transactions. Upon being shown
actual notations on some of the checks, bearing the word
"taxes" on the "memo" lines, Woods still denied that the pay-
ments related to preparation of the clients’ taxes.
Woods also stated that he "always" reviewed completed
returns with clients, whereas multiple clients testified that
Woods did not show them the returns once they had been
completed. The jury obviously recognized that this body of
evidence was irreconcilable, and that Woods’ testimony was
contrary to that of all the other evidence in the case. See
Moore, 11 F.3d at 482.
Additionally, the testimony of various government wit-
nesses, including that of several clients and victims, strongly
supported the jury’s finding of guilt. For example, one of
Woods’ clients, April Holder, testified that she understood,
before using M&R’s services for the first time, that she could
"purchase dependents" from Woods for $500. After Woods
entered on Holder’s tax return the name of a false dependent
whom Holder did not know, Woods reviewed the return with
Holder line by line, including the false dependent information.
After Holder received her refund, she personally delivered
7
As previously discussed, in his direct testimony, Woods stated that he
periodically loaned money in $500 amounts to clients, which he referred
to as "instant loans," and that clients would repay him during tax season,
presumably after receiving their tax refunds. One of the checks admitted
at trial included the word "loan" on the "memo" line.
UNITED STATES v. WOODS 13
$500 in cash to Woods "for the dependent fee." The govern-
ment also presented the testimony of twelve clients whose
returns were falsified by Woods, and of eight victims whose
identity information was fraudulently included to show them
as dependents on Woods’ clients’ returns.
Two of Woods’ employees who participated in the fraudu-
lent scheme also testified at the trial as government witnesses.
One employee, Larry Williams, testified that Woods directed
him to collect $500 payments from clients who had obtained
additional dependents on their tax returns, which sums were
charged in addition to the basic tax preparation fee deducted
from the refunds. Williams explained that when clients asked
him during the "intake" process at Woods’ home about pur-
chasing dependents, Williams referred such inquiries directly
to Woods. Williams also testified that he had observed on
Woods’ desk a list of various names, dates of birth, and social
security numbers, some of which had been "crossed out," fur-
ther implicating Woods as a knowing participant in the
scheme.
Woods’ assistant, Montina Ladson, who prepared false tax
returns under Woods’ direction and testified pursuant to a
grant of immunity, described a conversation with Woods in
which she told him that certain clients had asked her about
purchasing dependents. Woods responded that he had "helped
a couple of people out." Following this conversation, when
clients asked to obtain a false dependent, Ladson referred the
question to Woods. In response, Woods sometimes provided
Ladson the names, dates of birth, and social security numbers
of purported dependents for her to include on the clients’
returns and, at other times, Woods completed the falsified
returns himself. Ladson specified that she knew that the iden-
tities of these dependents supplied by Woods were false.
Ladson further testified that in March 2006, when Woods
was travelling in connection with his work for the VA, Lad-
son processed M&R’s pending tax returns. She explained that,
14 UNITED STATES v. WOODS
during that time, Woods instructed her to insert the names of
false dependents on returns he had started, and sent Ladson
via email a list of the identifying information that should be
included.8
In light of this volume of evidence of Woods’ guilt, we
conclude that, even in the absence of the prosecutor’s
improper statement, Woods’ credibility would have been sig-
nificantly weakened by the direct conflict between his testi-
mony and that of the several government witnesses and the
documentary evidence. Moreover, a considerable portion of
the government’s evidence directly contradicted Woods’ theo-
ries of defense. Accordingly, although we strongly criticize
the prosecutor’s argument that Woods had lied under oath, we
conclude that Woods’ substantial rights were not violated and
that this trial error does not warrant reversal of Woods’ con-
victions.
IV.
A.
Woods next contends that the district court erred when it
declined to include in its jury charge the pattern jury instruc-
tion regarding the character of the accused. We review a dis-
trict court’s decision whether to give a particular jury
instruction for abuse of discretion. United States v. Lighty,
616 F.3d 321, 366 (4th Cir. 2010). "A district court commits
reversible error in refusing to provide a proffered jury instruc-
tion only when the instruction (1) was correct; (2) was not
8
In his direct testimony, Woods attempted to argue that the email had
originated within the VA while he was travelling, so he could not have
sent it. Woods stated, however, that he did not know the origin of the
email, and the district court thus properly excluded this line of testimony.
See Fed. R. Evid. 701 (providing for admission of lay opinion testimony
that is "rationally based on the witness’s perception" and is "not based on
scientific, technical, or other specialized knowledge" for which an expert
would be required).
UNITED STATES v. WOODS 15
substantially covered by the court’s charge to the jury; and (3)
dealt with some point in the trial so important, that failure to
give the requested instruction seriously impaired the defen-
dant’s ability to conduct his defense." Id. (citation omitted).
However, "an error in jury instructions will mandate reversal
of a judgment only if the error is determined to have been
prejudicial, based on a review of the record as a whole." Wel-
lington v. Daniels, 717 F.2d 932, 938 (4th Cir. 1983).
During the charging conference, Woods requested that the
jury be given the following instruction regarding his good
character:
The defendant has offered evidence of his good gen-
eral reputation for honesty and integrity. The jury
should consider this evidence along with all the other
evidence in the case in reaching a verdict.
Evidence of a defendant’s reputation, inconsistent
with those traits of character ordinarily involved in
the commission of the crimes charged, may give rise
to a reasonable doubt since the jury may think it
improbable or unlikely that a person of good charac-
ter for honesty or integrity and for being a law-
abiding citizen would commit such crimes.
A defendant "may introduce affirmative testimony that the
general estimate of his character is so favorable that the jury
may infer that he would not be likely to commit the offense
charged." Michelson v. United States, 335 U.S. 469, 476
(1948); see also Fed. R. Evid. 404(a)(2)(A) ("[A] defendant
may offer evidence of the defendant’s pertinent" character
trait); Mannix v. United States, 140 F.2d 250, 253-54 (4th Cir.
1944) (explaining proper character evidence instruction). In
the present case, Woods offered two sources of evidence
regarding his good character: (1) his own testimony; and (2)
the testimony of his supervisor at the VA, Milton Harrison,
16 UNITED STATES v. WOODS
whom the government called in its case-in-chief and Woods
questioned on cross-examination.
Woods testified that his "integrity has never been in ques-
tion about my service and my dedication to my work . . . I’ve
worked hard." Harrison agreed on cross-examination that
Woods’ integrity was never called into question regarding his
work at the VA. Harrison also acknowledged in his testimony
his previous statement that he would be surprised to learn that
Woods had been abusing his position at the VA.
On redirect examination, Harrison responded to the govern-
ment’s questions as follows:
Q: Mr. Harrison, Mr. Woods asked you if his
integrity had been called into question at work.
Do you remember that?
A: Yes.
Q: Isn’t it fair to say that the information that
you’ve been presented with here calls into ques-
tion the defendant’s integrity?
A: Yes.
The district court ultimately declined to give Woods’ prof-
fered instruction on character evidence, finding that Harrison
"equivocated" in his opinion of Woods’ good character.
The government contends on appeal that, by his testimony
on redirect examination, Harrison retracted his opinion of the
defendant’s character and, thus, that Harrison’s testimony did
not support Woods’ request that a character instruction be
given to the jury. We disagree with the government’s argu-
ment.
The prosecutor’s question, referenced above, effectively
required that Harrison assume Woods’ guilt for purposes of
UNITED STATES v. WOODS 17
influencing the content of the character testimony, a practice
clearly prohibited under our precedent. We repeatedly have
held that "questions put to defense character witnesses that
assume[ ] a defendant’s guilt of the crime for which he was
charged [are] improper." United States v. Mason, 993 F.2d
406, 408 (4th Cir. 1993) (citing United States v. Siers, 873
F.2d 747 (4th Cir. 1989)). Harrison’s response to the improper
question therefore did not provide a valid basis on which to
refuse the proffered character instruction.
Even assuming that Harrison’s overall testimony was
"equivocal" in its endorsement of Woods’ character, it never-
theless remained the province of the jury to determine the
credibility of his testimony and the proper weight to afford
that particular evidence, including consideration of any incon-
sistencies in Harrison’s testimony. See United States v.
Dinkins, 691 F.3d 358, 387 (4th Cir. 2012) (noting that "it is
the jury’s province to weigh the credibility of the witnesses,
and to resolve any conflicts in the evidence"). Therefore, we
hold that the district court abused its discretion in refusing to
give the requested character evidence instruction.
We are unable to conclude, however, that Woods was prej-
udiced by the district court’s refusal to give that instruction.
As previously discussed, Woods’ uncorroborated testimony
was in direct conflict with substantial documentary and testi-
monial evidence. Comparing the defense evidence with the
strength of the government’s case, we firmly are convinced
that the jury would have returned guilty verdicts with or with-
out the requested character instruction. Therefore, the record
before us, considered as a whole, fails to establish the
required manifestation of prejudice. See Wellington, 717 F.2d
at 938.
B.
Finally, Woods appeals portions of the district court’s
instructions regarding the identity theft offenses. We review
18 UNITED STATES v. WOODS
de novo the question whether the district court properly
instructed the jury on the statutory elements of an offense.
United States v. Allen, 491 F.3d 178, 187 (4th Cir. 2007); see
also United States v. Jefferson, 674 F.3d 332, 351 (4th Cir.
2012) ("We review de novo the claim that a jury instruction
failed to correctly state the applicable law."). In our review,
we do not "view a single instruction in isolation," but instead
"consider whether taken as a whole and in the context of the
entire charge, the instructions accurately and fairly state the
controlling law." Allen, 491 F.3d at 187 (citation omitted).
Woods was charged with multiple counts of identity theft
and aggravated identity theft, in violation of 18 U.S.C.
§§ 1028(a)(7) and 1028A, respectively. Section 1028(a)(7)
provides criminal penalties for "whoever . . . knowingly trans-
fers, possesses, or uses, without lawful authority, a means of
identification of another person with the intent to commit, or
to aid or abet, or in connection with, any unlawful activity
that constitutes a violation of Federal law, or that constitutes
a felony under any applicable State or local law." Section
1028A prohibits the same conduct committed "during and in
relation to" an enumerated felony, in this case, wire fraud. 18
U.S.C. § 1028A(a)(1), (c)(5). The basis for these counts was
Woods’ inclusion of third parties’ names, with accompanying
personal identity information, as dependents on his clients’
tax returns without the authorization of those named third par-
ties.
The challenged portions of the district court’s jury instruc-
tions read:
The term "knowingly" means that the defendant
knew that he was using a means of identification
which was not his own, that the defendant knew that
the means of identification belonged to or was
assigned to another person, and that the defendant
acted without lawful authority.
UNITED STATES v. WOODS 19
To "act without lawful authority" means to have
transferred or used the means of identification of
another person without the person’s consent or
knowledge (internal quotations added).9
Woods objected to these instructions on the ground that they
permitted certain lawful conduct, including listing true chil-
dren as dependents on their parents’ returns without the chil-
dren’s consent, to fall within the definition of unlawful
activity. Further, according to Woods, the district court was
required to instruct the jury that he could be found guilty only
if he knew that the dependents listed on the tax returns were
not the true dependents of his clients. We disagree with
Woods’ arguments.
The district court instructed the jury that the government
must prove beyond a reasonable doubt that Woods "knew"
that his conduct was "without lawful authority." In contrast,
one of Woods’ theories at trial was that he did not know that
he was acting without lawful authority, but instead believed
that he effectively had obtained the dependents’ consent
through their parents’ or caretakers’ submission of this infor-
mation to him. Therefore, considering the jury charge as a
whole, we conclude that the instructions accurately stated the
statutory elements of identity theft and aggravated identity
theft, and that the district court did not err in its instructions
regarding these counts. See United States v. Smoot, 690 F.3d
215, 223 (4th Cir. 2012) ("[A] jury instruction is not flawed
if it is a fair and accurate statement of law.").
V.
Finally, Woods argues that we should vacate his conviction
because the cumulative effect of the claimed errors prejudiced
9
The district court gave these instructions twice, once for each identity
theft statute. Although the language was not identical both times, it was
substantively the same.
20 UNITED STATES v. WOODS
the outcome of his trial. Under our cumulative error doctrine,
"the cumulative effect of two or more individually harmless
errors has the potential to prejudice a defendant to the same
extent as a single reversible error." Lighty, 616 F.3d at 371
(quoting United States v. Basham, 561 F.3d 302, 330 (4th Cir.
2009)). However, we will reverse a conviction on the basis of
cumulative error only when the errors "so fatally infect the
trial that they violated the trial’s fundamental fairness." Id.
(citation omitted).
As recounted above, we have identified two errors that
occurred during Woods’ trial, namely, the prosecutor’s
improper statement that Woods had lied under oath, and the
district court’s decision not to instruct the jury on Woods’
character based on a flawed line of questioning by the prose-
cutor. Although these errors are not insignificant, and we
strongly caution the government against engaging in such
conduct in the future, we cannot conclude that the errors prej-
udiced Woods’ case so as to justify the unusual remedy of
reversal based on cumulative error. Neither of these errors on
its own "work[ed] any cognizable harm," Basham, 561 F.3d
at 330 (citation omitted), and the strength of the government’s
evidence leaves little doubt that the jury would have returned
guilty verdicts irrespective of the identified errors.
VI.
In sum, we hold that, although Woods’ trial was affected by
two errors, those errors, when considered both individually
and cumulatively, do not warrant reversal of Woods’ convic-
tions. We further hold that the district court did not improp-
erly restrict Woods’ right to testify in his defense and
correctly instructed the jury regarding the identity theft
offenses. For these reasons, we affirm the district court’s
judgment.
AFFIRMED